Andrew Thomason Nov. 4, 2014, 10:23am

Settlement proceedings between a Chicago nonprofit and an environmental scientist that began months ago against a "contentious and polarized background" appear to be ongoing, according to a recent judicial ruling.

The Alliance for Water Efficiency (AWE) filed a breach of contract lawsuit against James Fryer in January in Chicago's federal court, claiming Fryer, an environmental scientist, failed to deliver a satisfactory final report on a water usage study it hired him to conduct.

AWE alleged, among other things, that the report Fryer turned in was confusing, had a flawed statistical analysis and proffered unsupported conclusions. It also said Fryer wouldn’t turn over the research data that underpinned the study.

In March, AWE and Fryer reached a preliminary settlement that was nearly solidified, except for a few points. At no time was the settlement memorialized through a written and signed document.

After the initial settlement was agreed upon, the two parties had a series of arguments over the interpretation of the language. Fryer filed a motion to scrap that initial settlement, while AWE filed a motion to enforce it.

The original agreement had Fryer writing a final report for his client, the California Department of Water Resources, and AWE preparing its own report for the project advisory committee, which raised the concerns about his report and methods that led to the initial lawsuit.

Fryer also agreed to remove all references to AWE and its supporters in his report while AWE agreed to remove all references to Fryer from its report. It was agreed that if members of project advisory committee contacted Fryer about his report he could discuss his findings.

Additionally, it was agreed during the initial settlement negotiation that Fryer would hand over all the data from the utility companies he based the final report on to AWE.

Fryer’s draft report submitted to AWE after the first settlement discussion included references to the project advisory committee, ostensibly the funding mechanism for the study in the first place. Fryer argued it was his choice whether to include references to the project advisory committee or not.

This, according to AWE, violated the initial agreement to exclude each other from the separate reports. U.S. Magistrate Judge Jeffrey Cole agreed with AWE in his October 22 opinion.

It “is contrary to common sense to suggest that in light of the circumstances that gave rise to the litigation and in view of each side’s agreement to make no reference to the other in the separate reports being prepared for their separate funding sources, agreeing to go their separate ways, and agreeing that Mr. Fryer could not solicit PAC members to be involved in his report, Mr. Fryer was free nonetheless to make reference to AWE’s funding sources (i.e. the PAC members) in his report,” Cole wrote.

Cole added that while sending drafts of the settlement agreement back and forth over the course of a month and a half, Fryer never argued that the agreement allowed him to refer to the project advisory committee members and their role in funding AWE’s study.

The judge also rejected Fryer's argument that the settlement process should start over because of the disagreements and the fact there was never any written agreement that both parties signed.

“The parties agreed that although their settlement contemplated a future written document, the execution of that document was not a precondition to contract formation, and that there was a binding settlement agreement,” Cole explained.

In his opinion, Cole said the "most troublesome and conspicuous issue, notwithstanding the briefs' laconic treatment of the issues, involves the turnover of the Santa Rosa data."

Fryer was supposed to get releases from all of the utilities he based his "utility data" on and used in his report, but apparently did not have a confidentiality agreement with Santa Rose.

Cole noted that because the issues with the Santa Rosa data were not addressed during discussions in April and May, they "require further explication." He set a status hearing for late October, which has since been rescheduled to Nov. 19.
A docket entry from late last month notes that Cole urged the parties to continue talking in hopes "that whatever issues they have regarding the settlement agreement may be resolve to their joint satisfaction without the need for further protracted and expensive litigation."Records show Chicago attorneys David G. Wix, Daniel W. Tarpey and Kevin T. Mocogni of Tarpey Wix LLC represents AWE and California attorney Christopher W. Katzenbach represents Fryer.

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